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enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States. New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories
The United States Supreme Court issued a major decision on tolling the statute of limitations on state law claims while the case is in federal court which has significant impact on New Jersey employment litigation. In the case of Artis v. District of Columbia, the Supreme Court answered a major procedural question regarding the interplay of federal and state claims being heard together in federal district court and state statutes of limitations. While the case involved an employment case in District of Columbia, it would be equally applicable to cases brought under New Jersey employment law.
Background
Stephanie Artis worked as a health inspector for the city government of the District of Columbia. She was fired. Thereafter, she filed suit in the United States District Court for the District of Columbia. She alleged a federal claim under Title VII of the Civil Rights Act of 1964 (known as “Title VII”). She also sued under District of Columbia law for whistleblower retaliations, false claims and gender discrimination.
Both New Jersey’s Law Against Discrimination and the Federal Title VII of the Civil Rights Act of 1964 expressly prohibit employers from discriminating against employees because of their religious practices if they can be reasonably accommodated. In many cases the most difficult question is whether an accommodation which the employer could have provided was “reasonable.” However, the Third Circuit Court of Appeals recently issued an important decision on the unusual question of whether an employee’s honestly and strongly held beliefs could be considered “religious” under Title VII.
Paul Fallon had been an employee of Mercy Medical Center since 1994. In 2012, Mercy instituted a rule that all employees had to receive a flu vaccination each year. Mercy allowed for religious exemptions. Fallon requested and was granted exemptions in 2012 and 2013. However, she was denied in 2014 because Mercy had changed its definition of religious exemption. There was no question that Fallon’s objection was because of his sincerely held belief that the vaccination did more harm than good. However, he cited no religious source, just his belief that it is wrong to cause harm to your own body. Mercy decided that this reason was not “religious” under its policy, and ordered Fallon to get the shot or provide a letter from clergy explaining why he could not get the vaccination for religious reasons. He failed to provide the letter and refused to be vaccinated. Mercy therefore fired him.
Fallon filed suit in Federal District Court alleging that Mercy had fired him because of his religious beliefs, and therefore committed religious discrimination in violation of Title VII. The trial judge disagreed and dismissed his suit. Fallon appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit agreed with the trial judge’s opinion and upheld the decision.
In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge. In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”) https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.
In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action). However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action. The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.
The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate. (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.) In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation. In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation. The ADEA, Title VII, and the FCA all contain that same language.
Our employment lawyers represent many honorable New Jersey employees in disputes with their governmental employers.
The Winters Doctrine
As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees. In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court. The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).
In 2014, New Jersey’s Governor Christie signed The Opportunity to Compete Act which limited an employer’s ability to ask a potential employee about criminal records in many circumstances. The State passed this law based upon several findings, including:
New Jersey employment law protects employees who object to or report illegal conduct by their employers. New Jersey’s whistleblower protections, particularly the Conscientious Employee Protection Act, have been recognized as the strongest in the nation. The various sources of these protections are discussed below.
New Jersey’s Common Law – the Original Protection
New Jersey’s common law – the body of law derived from prior court decisions – holds that it is a civil wrong for an employer to fire an employee “in violation of a clear mandate of public policy.” What this has been interpreted to mean in the seminal New Jersey Supreme Court case of Pierce v Ortho Pharmaceuticals Corp. is that an employer cannot fire an employee in retaliation for the employee acting in opposition to a practice by the employer which was in violation of public policy, which in practice meant against the law.
Wage and Hour Laws Governing New Jersey Workplaces
The Fair Labor Standards Act is the federal law which, along with the Wage and Hour Division of the United States Department of Labor’s regulations found in the Code of Federal Regulations, governs overtime and minimum wage requirements. The Fair Labor Standards Act (known as the “FLSA”) requires that most employees (known as “non-exempt” employees, or those who are not exempt from overtime requirements) be paid “time and a half” for all hours they work over forty in any particular week.
In an action for violating the F
Some of the most conflict-ridden areas in New Jersey employment involve wage and hour issues – who needs to be paid, how much, when and for what. An important Federal appeals court decision has shed light on one of the most contested topics in this area – when employees mostly paid for benefits.
The Wage and Hour Legal and Regulatory Framework
Wage and hour issues in New Jersey are governed by New Jersey’s Wage and Hour Law and New Jersey’s Wage Payment Law. Employers in New Jersey must also comply with the requirements of the Federal Fair Labor Standards Act (known as the “FLSA”), and the regulations put out by the United States Department of Labor implementing the FLSA. New Jersey courts follow federal court decisions on the FLSA when interpreting the Wage and Hour Law and the Wage Payment Law. The Regulations which the Department of Labor established are found in the Code of Federal Regulations, known as the “CFR.”
When an employee is being harassed or disciplined in his employment as a result of discrimination or retaliation for the employee’s objections to illegal conduct, there are multiple laws which may provide relief to the employee. These include, for instance, New Jersey’s Law Against Discrimination (the “LAD”) and New Jersey’s Conscientious Employee Protection Act (“CEPA,” also known as the “Whistleblower Law.”)
Both Acts may allow the employee to bring a lawsuit against the employer for a wrongful termination or other adverse employment action (i.e. demotion), as well as harassment. When an employer is wrongfully disciplining or retaliating against an employee, it is important for the employee to preserve and maintain records of the wrongful conduct of the employer in order to support her claim that she suffered a wrongful employment action. However, employees need to be cautious in what records they preserve and how they preserve those records.
In the case of Quinlan v. Curtiss Wright Corporation Joyce Quinlan believed that as a result of gender discrimination, her employer had passed her over for a promotion. She then began copying confidential human resources files which she believed supported her claim that she was being discriminated against and she produced the copies in the course of discovery during litigation. The employer later fired her for “taking” the records (while litigation was ongoing). Quinlan then amended her complaint to include the claim that she was retaliated against for essentially participating in the LAD suit against the employer. The Law Against Discrimination not only prohibits employment discrimination on the basis of a protected classification (gender, nationality, religion, race, etc.), but it also prohibits retaliation against a person for opposing discrimination, filing a discrimination complaint, or participating in a LAD proceeding.
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